Wise v. St. Louis Transit Co.

• Decision Date: 03 July 1906
• Citation: 198 Mo. 546,95 S.W. 898
• Parties: WISE v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

95 S.W. 898

198 Mo. 546

WISE v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 2.

July 3, 1906.

1. STREET RAILROADS—INJURIES TO PERSON ON TRACK—ACTION — EVIDENCE — SUFFICIENCY.

In an action against a street railroad for injuries, held a question for the jury whether the motorman saw, or by the exercise of ordinary care could have seen, plaintiff standing on the track in time to have stopped the car.

2. SAME—ISSUES AND PROOF.

In an action against a street railroad for injuries, contributory negligence must be pleaded by defendant.

3. SAME—CONTRIBUTORY NEGLIGENCE—CHILDREN.

In an action against a street railroad for injuries to a child, he is to be held responsible only for such care as children of his age, experience, and discretion ordinarily use under the same and similar circumstances.

4. SAME—INSTRUCTIONS.

In an action against a street railroad for injuries to a child, it appeared that he was standing on a track at a street crossing waiting for a car to pass on another track when he was struck by a car, and the court was requested to instruct that the phrases "first appearance of danger" and "becoming aware of the danger," used in an ordinance read in evidence, and which required motormen to keep a "vigilant watch," did not mean that plaintiff was seen approaching the track by the motorman, but mean that the plaintiff was then in a position of danger of being struck, from which he could not extricate himself by the use of ordinary care, and if the plaintiff had not then reached the track, or a point so near the same as to come in collision with the car, then the motorman had the lawful right to assume that the plaintiff would not go on or so near the track as to come in collision with the car. Held, that the instruction was properly refused as inapplicable to the facts.

5. SAME.

It was proper to refuse an instruction that plaintiff could not recover if his injuries were due to mere accident or misadventure.

6. DAMAGES—PERSONAL INJURIES — INSTRUCTIONS.

In an action for injuries, where it appeared that plaintiff, a boy 7 years of age, had both bones of his right leg broken, that his leg was crooked by the injury, and that he sustained a concussion of the brain which rendered him unconscious for 9 days and which affected his nervous system, an instruction authorizing damages for impairment of earning capacity after majority was proper.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by Lawrence Wise, by his next friend, against the St. Louis Transit Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Boyle & Priest, Sears Lehmann, and Geo. W. Easley, for appellant. A. J. Haverstick and A. R. Taylor, for respondent.

GANTT, J.

This is an action by Lawrence Wise, a minor, by his next friend, against the St. Louis Transit Company, to recover damages on account of personal injuries sustained on the evening of October 30, 1902, whilst he was on a public crossing leading across Laclede avenue, from the north to the south side thereof, in the city of St. Louis, by being struck by one of the defendant's west-bound cars on Laclede avenue. The crossing on which plaintiff was when he was struck was a raised brick crossing between two cross streets in a long block, and used by the public as a foot crossing, and a place where the defendant's cars stopped to receive and discharge passengers. The plaintiff, at the time of his injury, was a few months past the age of 7 years, and lived with his parents at No. 4213 on the north side of Laclede avenue near said crossing. He was sent across the street to order milk for the house at or near half past 6 on the evening of October 30, 1902. It was just getting dark. The boy was proceeding across Laclede avenue on the said crossing from the north side to the south side of the street. When he reached the middle of the west-bound track, one of the defendant's cars east-bound came to this crossing and stopped, and he was compelled to stop to wait for this car to pass on, which he did, and just as this east-bound car started up he was struck by one of defendant's west-bound cars, and knocked across the east-bound track, where he was found unconscious 15 to 25 minutes after he left home. There was evidence that there was no signal by bell as the car that struck the plaintiff approached the crossing, and struck him. There was a city lamp on this crossing at its northeast end, and there was plenty of light on the crossing at the time the plaintiff was struck and injured. The injuries sustained were severe. Both bones of the right leg below the knee were broken, and a number of pieces of bones were removed from the leg, and pieces of the bones were split, and the bones protruded through the flesh, and he had concussion of the brain, from which he was unconscious 9 days. The petition in substance alleges that Laclede avenue, at the places mentioned, was, at the time the injuries are alleged to have been received, an open public street within the city of St. Louis; that on the 30th of October, 1902, plaintiff was passing southward across Laclede avenue upon a crossing between Sarah and Boyle avenues, when defendant's west-bound car in charge of its motorman and conductor was caused and suffered by said motorman and conductor to strike and greatly injure the plaintiff, causing a concussion of the brain of the plaintiff, a permanent injury to his nervous system, breaking the bones of his right leg, and causing other injuries and bruises on his body, and permanent internal injuries; that the defendant and its motorman and conductor were negligent in causing said car to strike and injure the plaintiff in this: that at the time of the plaintiff's injury they were causing said car to run at a high and reckless rate of speed, and failed to keep any watch or to use any care to look out for persons on defendant's tracks, or approaching them, and failed to give any warning by bell or otherwise of the approach of the said car to said crossing, which negligence directly caused, and contributed to cause said car to strike and injure the plaintiff. It is also averred that at the time of said injuries there was in force within the city of St. Louis an ordinance of said city by which it was provided that motormen and conductors on street cars should keep a vigilant watch for persons on the track, especially children, either on the track or moving towards it, and upon the first appearance of danger to said person or child the car should be stopped within the shortest time and space possible, but that the defendant's motorman and conductor failed to keep such vigilant watch, and failed to stop said car on the first appearance of danger to plaintiff, which violation of said ordinance directly contributed to plaintiff's injuries; that by his injuries, so sustained, plaintiff has suffered and will suffer great pain of body and mind, has been permanently crippled and disabled for labor, has lost and will lose the earnings of his labor, and his leg is deformed permanently, to his damage in the sum of $5,000, for which sum he prays judgment. The answer was a general denial.

The plaintiff testified: that it was not yet dark, but was getting dark. That he had started south over the crossing from the north to the south side of Laclede avenue. That he saw a car coming from the west going east, there was plenty of light, he could see the car plainly. There was light on the street where he was standing. He stopped to let the east-bound car pass him before attempting to cross the track. He stepped in the middle of the west-bound track waiting for the other car to pass east. That car came to a stop at the crossing, and just as it began to start east a car going west on the track on which he was standing came up and struck him. He testified that he heard no bell on the car that hit him. He testified that he saw the car that struck him just before it hit him, and after that he did not know anything. The evidence further shows that Laclede avenue, going west at this point, is upgrade. The testimony further showed that the boy was so struck by the car that he was thrown and fell across the east-bound track on the east side thereof, with his foot within about a foot of the south rail of the east-bound track, and that he was found at this point by his sister in an unconscious condition about 25 minutes after he left the house; she having been notified by a man that the boy was lying on the street. The vigilant watch ordinance was read in evidence. Dr. Haverstick was called immediately after the boy was removed to his home, and testified that the boy was perfectly unconscious and had a concussion of the brain, an injury to his right arm, a bruise, and a compound complicated fracture of his right leg. Both bones in the foreleg were broken, the bones had run out through the flesh at least four inches, and they were broken in more than one place. There were pieces of bone broken off of the large bone of the leg. He exhibited some of the pieces of bone that came out of the limb, some of them four weeks after the injury and some three months afterwards. The boy was perfectly unconscious for 8 or 9 days after the injury, and had that peculiar breathing and was in that serious condition that you always have after a profound nervous shock. He treated the boy until the next July. He testified that he was assisted by Dr. Lutz in setting the limb, and that fairly good results had followed. The bones had united. He testified that the boy was more nervous and more excitable from the concussion of his brain. He testified to the suffering of the boy from his injuries; that it was impossible to keep him quiet, or have him sleep, although he had administered all the sedative medicines that were safe to give him. Miss Minnie Wright, a trained nurse, attended the boy from the next evening after he was hurt for 21 days. She testified that he was in an unconscious...